9.  The applicant was born in 1967 and lives in Bourg-en-Bresse.
10.  On 27 November 1991 the applicant, Mrs Thi-Nho Vo, who is of Vietnamese origin, attended Lyons General Hospital for a medical examination scheduled during the sixth month of pregnancy.
11.  On the same day another woman, Mrs Thi Thanh Van Vo, was due to have a contraceptive coil removed at the same hospital. When Dr G., who was to remove the coil, called out the name “Mrs Vo” in the waiting-room, it was the applicant who answered.
After a brief interview, the doctor noted that the applicant had difficulty in understanding French. Having consulted the medical file, he sought to remove the coil without examining her beforehand. In so doing, he pierced the amniotic sac causing the loss of a substantial amount of amniotic fluid.
After finding on clinical examination that the uterus was enlarged, the doctor ordered a scan. He then discovered that one had just been performed and realised that there had been a case of mistaken identity. The applicant was immediately admitted to hospital.
Dr G. then attempted to remove the coil from Mrs Thi Thanh Van Vo, but was unsuccessful and so prescribed an operation under general anaesthetic for the following morning. A further error was then made when the applicant was taken to the operating theatre instead of Mrs Thi Thanh Van Vo, and only escaped the surgery intended for her namesake after she protested and was recognised by an anaesthetist.
12.  The applicant left the hospital on 29 November 1991. She returned on 4 December 1991 for further tests. The doctors found that the amniotic fluid had not been replaced and that the pregnancy could not continue further. The pregnancy was terminated on health grounds on 5 December 1991.
13.  On 11 December 1991 the applicant and her partner lodged a criminal complaint, together with an application to join the proceedings as civil parties, alleging unintentional injury to the applicant entailing total unfitness for work for a period not exceeding three months and unintentional homicide of her child. Three expert reports were subsequently filed.
14.  The first, which was filed on 16 January 1992, concluded that the foetus, a baby girl, was between 20 and 21 weeks old, weighed 375 grams, was 28 centimetres long, had a cranial perimeter of 17 centimetres and had not breathed after delivery. The expert also concluded that there was no indication that the foetus had been subjected to violence or was malformed and no evidence that the death was attributable to a morphological cause or to damage to an organ. Further, the autopsy performed after the abortion and an anatomico-pathological examination of the body indicated that the foetal lung was 20 to 24 weeks old.
15.  On 3 August 1992 a second report was filed concerning the applicant’s injuries:
“(a)  There is a period of temporary total unfitness for work from 27 November 1991 to 13 December 1991, when the patient was admitted to the Tonkin Clinic with an entirely unconnected pathology (appendectomy)
(b)  the date of stabilisation can be put at 13 December 1991
(c)  there is no loss of amenity
(d)  there is no aesthetic damage
(e)  there is no occupational damage
(f)  there is no partial permanent unfitness for work
Damage in terms of pain and suffering resulting from this incident still has to be assessed. The assessment should be carried out with a doctor of Vietnamese extraction specialising in psychiatry or psychology.”
16.  The third report, which was issued on 29 September 1992, referred to the malfunctioning of the hospital department concerned and to negligence on the part of the doctor:
“1.  The manner in which appointments in the departments run by Professors [T.] and [R.] at Lyons General Hospital are organised is not beyond reproach, in particular in that namesakes are common among patients of foreign origin and create a risk of confusion, a risk that is undoubtedly increased by the patients’ unfamiliarity with or limited understanding of our language. 2.  The fact that patients were not given precise directions and the consulting rooms and names of the doctors holding surgeries in them were not marked sufficiently clearly increased the likelihood of confusion between patients with similar surnames and explains why, after Dr [G.] had acquainted himself with Mrs Thi Thanh Van Vo’s medical file, it was [the applicant] who came forward in response to his call. 3.  The doctor acted negligently, by omission, and relied solely on the paraclinical examinations. He did not examine his patient and by an unfortunate error ruptured the amniotic sac, causing the pregnancy to terminate at five months. He is accountable for that error, although there are mitigating circumstances.”
17.  On 25 January 1993, and also following supplemental submissions by the prosecution on 26 April 1994, Dr G. was charged with causing unintentional injury at Lyons on 27 November 1991 by:
(i)  through his inadvertence, negligent act or inattention, perforating the amniotic sac in which the applicant’s live and viable foetus was developing, thereby unintentionally causing the child’s death (a criminal offence under Article 319 of the former Criminal Code – which was applicable at the material time – now Article 221-6 of the Criminal Code);
(ii)  through his inadvertence, negligent act, inattention, negligent omission or breach of a statutory or regulatory duty of protection or care, causing the applicant bodily injury that resulted in her total unfitness for work for a period not exceeding three months (a criminal offence under Article R. 40, sub-paragraph 4, of the former Criminal Code – which was applicable at the material time – now Articles R. 625-2 and R. 625-4 of the Criminal Code).
18.  By an order of 31 August 1995, Dr G. was committed to stand trial in the Lyons Criminal Court on counts of unintentional homicide and unintentionally causing injuries.
19.  By a judgment of 3 June 1996, the Criminal Court found that the accused was entitled as of right to an amnesty under the Amnesty Law of 3 August 1995 in respect of the offence of unintentionally causing injuries entailing temporary unfitness for work of less than three months. As to the offence of unintentional homicide of the foetus, it held:
“The issue before the Court is whether the offence of unintentional homicide or the unintentional taking of the foetus’s life is made out when the life concerned is that of a foetus – if a 20 to 21 week-old foetus is a human person (‘another’ within the meaning of Article 221-6 of the Criminal Code).
...
The expert evidence must be accepted. The foetus was between 20 and 21 weeks old.
At what stage of maturity can an embryo be considered a human person?
The Voluntary Termination of Pregnancy Act of 17 January 1975 provides: ‘The law guarantees respect of every human being from the beginning of life.’
The Law of 29 July 1994 (Article 16 of the Civil Code) provides: ‘The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life’.
The laws of 29 July 1994 expressly employed the terms ‘embryo’ and ‘human embryo’ for the first time. However, the term ‘human embryo’ is not defined in any of them.
When doing the preparatory work for the legislation on bioethics, a number of parliamentarians (both members of the National Assembly and senators) sought to define ‘embryo’. Charles de Courson proposed the following definition: ‘Every human being shall be respected from the start of life; the human embryo is a human being.’ Jean-François Mattéi stated: ‘The embryo is in any event merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation.’
It thus appears that there is no legal rule to determine the position of the foetus in law either when it is formed or during its development. In view of this lack of a legal definition it is necessary to return to the known scientific facts. It has been established that a foetus is viable at 6 months and on no account, on present knowledge, at 20 or 21 weeks.
The Court must have regard to that fact (viability at 6 months) and cannot create law on an issue which the legislators have not yet succeeded in defining.
The Court thus notes that a foetus becomes viable at the age of 6 months; a 20 to 21 week-old foetus is not viable and is not a ‘human person’ or ‘another’ within the meaning of former Article 319 and Article 221-6 of the Criminal Code.
The offence of unintentional homicide or of unintentionally taking the life of a 20 to 21 week-old foetus has not been made out, since the foetus was not a ‘human person’ or ‘another’...
Acquits Dr G. on the charge without penalty or costs ...”
20.  On 10 June 1996 the applicant appealed against that judgment. She argued that Dr G. had been guilty of personal negligence severable from the functioning of the public service and sought 1,000,000 French francs (FRF) in damages, comprising FRF 900,000 for the death of the child and FRF 100,000 for the injury she had sustained. The public prosecutor’s office, as second appellant, submitted that the acquittal should be overturned. It observed: “By failing to carry out a clinical examination, the accused was guilty of negligence that caused the death of the foetus, which at the time of the offence was between 20 and 24 weeks old and following, normally and inexorably, the path of life on which it had embarked, there being no medical doubt over its future.”
21.  In a judgment of 13 March 1997, the Lyons Court of Appeal upheld the judgment in so far as it had declared the prosecution of the offence of unintentionally causing injuries time-barred but overturned the remainder of the judgment and found the doctor guilty of unintentional homicide. It imposed a six-month suspended prison sentence and a fine of FRF 10,000, holding:
“... In the instant case Dr [G.]’s negligence is characterised in particular by the fact that the patient’s knowledge of French was insufficient to enable her to explain her condition to him, to answer his questions or to give him the date of her last period, circumstances that should have further impressed upon him the need for a thorough clinical examination. The assertion that he was entitled to rely on the medical records alone shows that, though an able scientist, this young doctor was nonetheless unaware of one of the essential skills of the practice of medicine: listening to, getting to know and examining the patient. Indeed, before this Court Dr [G.] said that the accident had impressed upon him how vital it was to take precautions before operating.
There is a clear causal link between this negligent act and omission and the death of the child Mrs Vo was carrying. The accused has himself acknowledged, with commendable honesty, that a clinical examination would have alerted him to the fact that the patient was pregnant and had been mistaken for another patient.
As regards the classification of the offence as unintentional homicide, it is first necessary to reiterate the legal principles governing this sphere.
Various provisions of international treaties, such as Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of the International Covenant on Civil and Political Rights and Article 6 of the Convention on the Rights of the Child signed in New York on 26 January 1990, recognise a right to life protected by law for everyone, and notably children.
Under domestic law, section 1 of the Voluntary Termination of Pregnancy Act (Law no. 75-17 of 17 January 1975) specifies: ‘The law guarantees respect of every human being from the beginning of life ... this principle may only be derogated from in the event of necessity and in accordance with the conditions set out in this statute.’
Further, Law no. 94-653 of 29 July 1994 on the respect of the human body lays down in Article 16 of the Civil Code: ‘The law secures the primacy of the person, prohibits any assault on human dignity and guarantees the respect of every human being from the beginning of its life.’
These statutory provisions cannot be regarded as mere statements of intent, devoid of any legal effect, since Article 16-9 of the Civil Code indicates that the provisions of Article 16 are mandatory.
For its part the Criminal Division of the Court of Cassation applied these rules of international and domestic law in two judgments it delivered on 27 November 1996, specifying that the Act of 17 January 1975 only permits derogation from the rule stated in section 1 thereof that every human being is entitled to respect from the beginning of life in cases of necessity and subject to the conditions and limitations set out in it.
The Court of Cassation added that, having regard to the conditions laid down by the legislature, the provisions of that statute and of the law of 31 December 1979 on the voluntary termination of pregnancy, taken as a whole, were not incompatible with the aforementioned treaty provisions.
In a different case, moreover, the Court of Cassation pointed out that on signing the Convention on the Rights of the Child in New York on 26 January 1990, France made a declaration concerning interpretation in which it stated that the convention could not be interpreted as constituting any obstacle to the implementation of the provisions of French legislation on the voluntary termination of pregnancy. That reservation shows, by converse implication, that that convention could concern a foetus aged less than 10 weeks, the statutory maximum foetal age in France for a voluntary termination of pregnancy.
It follows that, subject to the provisions on the voluntary termination of pregnancies and therapeutic abortions, the right to respect for every human being from the beginning of life is guaranteed by law, without any requirement that the child be born as a viable human being, provided it was alive when the injury occurred.
Indeed, viability is a scientifically indefinite and uncertain concept, as the accused, who is currently studying in the United States, himself acknowledged, informing the Court that foetuses born between 23 and 24 weeks after conception could now be kept alive, a situation that was inconceivable a few years ago. In the opinion prepared by Professor [T.] and adduced in evidence by Dr [G.], reference is made to a report by Professor Mattéi in which it is indicated that the embryo is merely the morphological expression of one and the same life that begins with impregnation and continues till death after passing through various stages. It is not yet known with precision when the zygote becomes an embryo and the embryo a foetus, the only indisputable fact being that the life process starts with impregnation. ...
Thus the issue of viability at birth, a notion that is uncertain scientifically, is in addition devoid of all legal effect, as the law makes no distinction on that basis.
In the instant case it has been established that when the scan was performed on 27 November 1991 – before the amniotic fluid was lost later that day – the [applicant’s] pregnancy had been proceeding normally and the child she was carrying was alive. When the therapeutic abortion was performed on 5 December 1991, it was noted that a comparison of the child’s measurements with published tables suggested that the foetus was between 20 and 21 weeks old and possibly older, as it is not certain that the tables take into account the specific morphology of children of Vietnamese origin. Dr [G.], when questioned on this point at the hearing, was unable to provide any further information. The conclusion from the anatomo-pathological examination was that the foetal lung indicated an age of between 20 and 24 weeks, its measurements suggesting that an age at the lower end of that range was the most likely. In any event, as Dr [G.] said in evidence, the age of the foetus was very close to that of certain foetuses that have managed to survive in the United States. The photographs at page D 32 of the trial bundle show a perfectly formed child whose life was cut short by the accused’s negligence.
As the Douai Court of Appeal observed in its judgment of 2 June 1987, had the assault on the child concerned inflicted a non-fatal wound, it would have been classified without any hesitation as an offence of unintentionally causing injuries. A fortiori, an assault leading to the child’s death must be classified as unintentional homicide.
Thus, the strict application of the legal principles, established scientific fact and elementary common sense all dictate that a negligent act or omission causing the death of a 20 to 24 week-old foetus in perfect health should be classified as unintentional homicide.
Consequently, the impugned judgment must be overturned ...
While [the applicant’s] civil action is admissible, if only to corroborate the prosecution case, this Court has no jurisdiction to hear the claim for reparation. This is because despite the serious nature of the negligent act and omission of Dr [G.], a doctor in a public hospital, they do not constitute personal misconduct of such exceptional gravity entailing a total disregard for the most elementary principles and duties inherent in his function as to make them severable from public service.
Nonetheless, it is appropriate to order Dr [G.] to pay to this civil party compensation in the sum of 5,000 francs under Article 475-1 of the Code of Criminal Procedure on account of costs which she has incurred, but which have not been paid by the State.
...”
22.  On 30 June 1999, on an appeal on points of law by the doctor, the Court of Cassation reversed the judgment of the Lyons Court of Appeal and ruled that there was no reason to remit the case for retrial:
“Having regard to Article 111-4 of the Criminal Code:
Criminal-law provisions must be strictly construed.
...
In convicting [the doctor] of unintentional homicide, the appellate court noted that Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 6 of the International Covenant on Civil and Political Rights recognise the existence for all persons of a right to life protected by law. The appellate court stated that the Voluntary Termination of Pregnancy Act of 17 January 1975 establishes the rule that the life of every human being must be respected from the beginning of life. That rule is now restated in Article 16 of the Civil Code as worded following the amendment made by the Law of 29 July 1994. The appellate court went on to state that, by operating without performing a prior clinical examination, the doctor was guilty of a negligent act or omission that had a definite causal link with the death of the child the patient was carrying.
However, by so holding, when the matters of which the defendant was accused did not come within the definition of the offences set out in former Article 319 and Article 221-6 of the Criminal Code, the Court of Appeal misinterpreted the aforementioned provisions.
...”